Mohamed Mirza, J.
1. In C. C. No. 6593 of 196G, on the file of the Third City Magistrate, Hyderabad a petition was filed on behalf of the prosecution Under Section 510, A, Criminal Procedure Code, praying that the evidence of the witnesses namely (1) Sri S. R. Y. Sivarani Prasad Bahadur Raja of Challa-palli, Hon'ble Minister for Public Health Hyderabad and (2) Sri M. Krishnaiah Shetty, I. P. S, Deputy Director Central Intelligence Bureau, Madras, may be permitted to be given by way of affidavits. It was also stated therein that these witnesses are of a high rank and status, that their evidence is of a formal character and that the allegations contained in Ex. P-26 were not germane to the inquiry as their evidence is only to deny some of the allegations in Ex. P-26. It was further stated that as witnesses Nos. 10 and 13 cited in the list of witnesses were not cross-examined by the defence, the witnesses whose evidence is sought to be given by affidavits are also of the same nature.
2. This petition was opposed by the defence on the ground that the evidence of these witnesses is not of a formal character and, therefore, in view of the provisions of Section 510-A Criminal Procedure Code their evidence cannot be permitted to be given by way of affidavits. The learned Magistrate posed a question for consideration namely whether the witnesses proposed to be examined by the prosecution tan give their evidence by filing affidavits Under Section 510-A Criminal Procedure Code and ultimately he came to the conclusion that in order to expedite the disposal of a case against a person the Court must take the evidence by entertaining affidavits of witnesses if put in by the prosecution.
3. Section 510-A Criminal Procedure Code was introduced by the Amending Act (No. 26 of 1953) and it reads as follows:-
(1) The evidence of any person whose evidence is of a formal character may be given by an affidavit and may subject to all just exceptions, be read in evidence in any inquiry trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such persons as to the facts contained in his affidavit.'
This mode of giving evidence in a criminal trial is a departure from the usual method and there is no doubt that it is meant to accelerate the disposal of cases. In Sub-section (1) stress is given tothe words 'formal character' of a witness and it does not speak of his rank or status. Under Sub-section (2) even it the Court permits the evidence to be given by way of an affidavit and at a later stage if it think fit, it may summon and examine any such person whose affidavit has been filed as evidence but on the application of the prosecution of the accused, it shall summon and examine any person as to the facts contained in his affidavit
4. The contention of the learned counsel for the petitioner is that the witnesses whose evidence is sought to be filed by way ot affidavits by the prosecution are not of a formal character and the truth or falsity of the allegations made in Ex. P-2G baa to be considered for a just decision of the case. According to the learned counsel it is the case of the prosecution that the allegations are false and the evidence of the said witnesses in this context is very important. The learned counsel refers me to page 1145 of Stroud's Judicial Dictionary. Volume 2, (Third Edition) wherein it has been mentioned that an allegation in an indictment which must be proved as alleged, cannot be called formal and it is urged that the defence has to answer the charge made in Ex. p-26 that the allegations are false.
5. On the other hand, the learned Advocate-General contends that the prosecution is at liberty to file the affidavit of any witness cited and it is not the stage at which the Court should consider whether the evidence of a witness whose affidavit has been filed is of a formal character He further contends that it is for necessary for the prosecution to establish the truth or otherwise of the allegations for proving an offence Under Section 507, Indian Penal Code It bat been submitted that if at a later stage the Court thinks that the witness should be examined in Court, it may call the witness or if the accused feels that a witness should be examined he shall make an application and the Court may then summon him I think Section 510-A does not give a free hand either to the prosecution or the accused to adduce evidence by filing affidavits. It is for the Court to consider whether the evidence of a witness sought to be tendered by way of an affidavit is of a formal character before it permits the Sling of the affidavit. It is incumbent on the Magistrate to apply his mind to this aspect before deciding whether the evidence of a witness can be given by an affidavit
The learned Magistrate has fallen into an error when he observed that the Court must take evidence by entertaining affidavits of witnesses if pat in by the prosecution. The section itself bas restricted the filing of affidavits by imposing s condition that the evidence of a witness should be of a formal character and the learned Magistrate has not applied his mind to this aspect of the case. Section 510-A has enacted a special rule of evidence and a special rule has to be applied in special cases and it would not override general principles. Especially in criminal cases, the demea nour and the way in which a witness gives evidence has particular significance and, therefore, the code envisages that usually the witnesses shall be examined in the open Court. If the Magistratethinks that the occasion demands the application of this special rule, he may permit the filing of the affidavits of the witnesses cited by the prosecution
6. The revision case is, therefore, allowed and the case is remanded to the learned Magistrate for deciding the petition in the light of the observations made above.